MEMORANDUM DECISION
Jul 20 2015, 10:39 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lawrence M. Hansen Gregory F. Zoeller
Hansen Law Firm, LLC Attorney General of Indiana
Noblesville, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jacob McDaniel, July 20, 2015
Appellant-Defendant/Cross-Appellee, Court of Appeals Case No. 29A04-
1412-CR-599
v.
Appeal from the Hamilton Superior
Court
State of Indiana,
The Honorable Daniel J. Pfleging,
Appellee-Plaintiff/Cross-Appellant Judge
Case No. 29D02-1312-FC-10137
Crone, Judge.
Case Summary
[1] Jacob McDaniel appeals his sixteen-year aggregate sentence imposed following
the trial court’s acceptance of his plea agreement with the State, in which he
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pled guilty to class C felony reckless homicide and class D felony pointing a
firearm. The State cross-appeals, asserting that pursuant to his plea agreement,
McDaniel waived his right to directly appeal his sentence. McDaniel argues
that he did not knowingly and voluntarily agree to waive his right to appeal his
sentence because the trial court advised him at the sentencing hearing that he
had the right to appeal his sentence. We conclude that McDaniel knowingly
and voluntarily waived his right to appeal his sentence and that the trial court’s
mistaken advisement at the end of the sentencing hearing does not affect the
validity of McDaniel’s waiver. Accordingly, we dismiss.
Facts and Procedural History
[2] The factual basis supporting McDaniel’s guilty plea follows. One evening in
December 2013, McDaniel was at his Noblesville home with three friends,
Dajuan Williams, Skylar Gadd, and Aubrey Peters. McDaniel took Williams
and Gadd upstairs to his bedroom where he showed them his father’s handgun
and shotgun. McDaniel took the handgun downstairs to show Peters.
McDaniel thought that the gun was unloaded because he had removed the
magazine. While pointing the gun in Peters’s direction, McDaniel pulled the
trigger and shot her, causing her death. McDaniel told Williams and Gadd to
say that the gun just fell off the table and fired. During the investigation, police
learned that two days before the shooting, McDaniel had pointed a shotgun at
another friend, Haley Graham.
[3] The State charged McDaniel with one count of class C felony reckless
homicide, a firearm sentencing enhancement, and four counts of class D felony
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pointing a firearm. In September 2014, McDaniel and the State entered into a
plea agreement, wherein McDaniel agreed to plead guilty to class C felony
reckless homicide, the firearm sentencing enhancement, and one count of class
D felony pointing a firearm, and the State agreed to dismiss two counts of
pointing a firearm and all charges in cause number 29D02-1407-F6-5519. 1 The
parties also agreed that McDaniel’s aggregate sentence was to be no less than
five years executed on home detention and no more than fifteen years executed
in the Department of Correction, but otherwise sentencing was left to the
discretion of the trial court. In addition, the plea agreement contains a series of
paragraphs with a blank for McDaniel to initial each paragraph. McDaniel
initialed paragraph 4r, in which he agreed to waive his right to appeal his
sentence.
[4] In September 2014, a plea hearing was held at which McDaniel pled guilty to
class C felony reckless homicide, the firearm sentencing enhancement, and one
count of class D felony pointing a firearm. The trial court advised McDaniel of
his rights and discussed the charges, the penalties, and the terms of the plea
agreement. While under oath, McDaniel specifically told the trial court that he
read the paragraphs that he initialed. Appellee’s App. at 16. 2 He also stated
1
Although the plea agreement calls for the State to dismiss two counts of pointing a firearm, ultimately the
trial court dismissed all three of the remaining charges for pointing a firearm. In cause number 29D02-1407-
F6-5519, the State charged McDaniel with level 6 felony unlawful possession of a syringe.
2
McDaniel failed to provide us with the transcript of the guilty plea hearing. We thank the State for
providing the transcript.
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that his defense counsel was available to discuss the plea agreement with him
and answer his questions. At no time did the trial court advise McDaniel that
he had the right to appeal his sentence. The trial court took the plea agreement
and the State’s motion to dismiss charges under advisement and ordered the
preparation of a presentence investigation report.
[5] In December 2014, a sentencing hearing was held. The trial court accepted the
plea agreement and entered judgment of conviction for class C felony reckless
homicide and class D felony pointing a firearm. The trial court sentenced
McDaniel to consecutive terms of eight years for reckless homicide plus five
years for the firearm sentencing enhancement, all executed, and three years for
pointing a firearm, with two years served in community corrections and one
year suspended to probation, for an aggregate sentence of sixteen years. After
McDaniel was sentenced, the trial court advised him that he had the right to
appeal his sentence and asked him if he would like to appeal his sentence.
McDaniel’s counsel stated that they wanted to discuss it. The trial court asked
defense counsel whether he could assist McDaniel with an appeal. Defense
counsel replied affirmatively. This appeal ensued.
Discussion and Decision
[6] McDaniel argues that the trial court erred in sentencing him. However, we do
not address the sentencing errors he alleges because we conclude that he waived
his right to directly appeal his sentence.
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[7] Although a “person convicted of, or sentenced for, a crime by a court of this
state has a constitutional right to appeal that conviction or sentence,” Miller v.
State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert. denied (2000), a person who
pleads guilty waives the right to appeal the conviction. Collins v. State, 817
N.E.2d 230, 231 (Ind. 2004). A person may also waive the right to appeal his
or her sentence pursuant to a written plea agreement. Creech v. State, 887
N.E.2d 73, 75 (Ind. 2008). To be valid, such a waiver must be agreed to
knowingly and voluntarily. Id. at 76. “‘[M]ost waivers are effective when set
out in writing and signed.’” Id. (quoting United States v. Wenger, 58 F.3d 280,
282 (7th Cir. 1995)). “‘The content and language of the plea agreement itself,
as well as the colloquy where necessary, govern [the] determination as to the
validity of the waiver.’” Id. (quoting United States v. Williams, 184 F.3d 666,
668 (7th Cir. 1999)) (alteration in Creech).
[8] Here, paragraph 4r of the plea agreement provides that McDaniel,
[u]nless otherwise provided for in this plea agreement, hereby waives
his right to appeal any discretionary portion of the sentence entered
pursuant to and in accordance with this plea agreement and further
acknowledges and affirms that this waiver is knowing and made
voluntarily. He understands that he otherwise would have a right to
appeal his sentence if there is an open plea. [McDaniel] hereby waives
his right to appeal the sentence so long as the Court sentences him
within the terms of the plea agreement. He understands and waives
his right to appeal the proportionality of the sentence under Article I,
Section 16 of the Indiana Constitution. Therefore, he knowingly and
voluntarily agrees to waive his right to appeal his sentence on the basis
that it is erroneous or for any other reason so long as the Judge
sentences him within the terms of this plea agreement.
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Appellant’s App. at 14.
[9] The language of the plea agreement clearly and unambiguously states that
McDaniel is waiving his right to appeal his sentence as long as he is sentenced
within the terms of the plea agreement. Both McDaniel and his counsel signed
the plea agreement. At the guilty plea hearing, McDaniel told the trial court
that he placed his initials in the blanks next to paragraphs 4a through -u and
that his initials indicated that he “read the paragraphs that came after [his]
initials.” Appellee’s App. at 16. McDaniel also told the court that his counsel
was available to answer the questions he had about the plea agreement. Id.
Defense counsel stated that McDaniel had had several questions over the
course of the proceedings, and McDaniel stated that counsel had answered his
questions to the best of his ability. The trial court asked McDaniel if he
understood the agreement, and McDaniel said that he did. Id. at 18. During
the guilty plea hearing, the trial court did not advise McDaniel that he had the
right to appeal his sentence. Accordingly, we conclude that McDaniel
knowingly and voluntarily waived his right to appeal his sentence.
[10] However, McDaniel argues that the final discussion between the parties and the
trial court at the close of the sentencing hearing shows that he did not
knowingly waive his right to direct appellate review of his sentence. After the
trial court accepted the plea agreement, ordered that judgment of conviction be
entered for reckless homicide and pointing a firearm, and dismissed the
remaining charges, it erroneously advised McDaniel that he had the right to
appeal his sentence. The trial court asked defense counsel whether he could
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assist McDaniel with an appeal. Defense counsel replied affirmatively. The
trial court stated, “I think you set out legal arguments that would assist him in
that area.” Tr. at 100. The prosecutor then stated that he would like to release
the victim’s personal property to the family “even if it is on appeal, that would
be appealing the sentence.” Id. Defense counsel said, “We would only be
appealing the sentence, so that would be fine,” and the trial court agreed. Id.
McDaniel contends that this conversation shows that the parties to the plea
agreement anticipated that he reserved his right to appeal the sentence. He also
asserts that the prosecutor failed to object and participated in the discussion,
and therefore the State waived any objection to his exercise of his right to
appellate review of his sentence.
[11] These arguments were addressed and rejected in Creech and Mechling v. State, 16
N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied (2015), neither of which
McDaniel acknowledges. In Creech, our supreme court rejected the argument
that Creech’s waiver was not knowing and voluntary because the trial court
advised him at the end of the sentencing hearing that he had the right to appeal
his sentence. 887 N.E.2d at 76. Our supreme court reasoned that the trial
court’s mistaken advisement at the end of sentencing occurred after Creech had
pled guilty and received the benefit of the plea agreement, and therefore the
mistaken advisement presumably had no effect on the transaction. Id. at 77. In
Mechling, another panel of this Court rejected Mechling’s argument that the
State was estopped from enforcing the written waiver of his right to appeal his
sentence by its failure to object or correct the trial court’s mistaken advisement
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at the end of the sentencing hearing. 16 N.E.3d 1017-18. The Mechling court
concluded that “[w]hile some sort of objection or correction from the State is
undoubtedly ideal, we do not believe a duty to speak existed here such that
application of estoppel is warranted.” Id. Cf. Holloway v. State, 950 N.E.2d 803,
806 (Ind. Ct. App. 2011) (concluding that Holloway’s waiver of right to appeal
sentence was not knowing and voluntary where trial court stated at least twice
at combined guilty plea and sentencing hearing that defendant could appeal
sentence, before defendant had received benefit of his plea bargain); Bonilla v.
State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009) (concluding that Bonilla did
not waive right to appeal sentence where trial court advised him at guilty plea
hearing and again at sentencing hearing that he had right to appeal sentence)
trans. denied; Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct. App. 2008)
(concluding that Ricci did not waive right to appeal sentence where trial court
advised him at guilty plea hearing that he had right to appeal sentence), trans
denied.
[12] As happened in Creech and Mechling, the trial court in this case did not
mistakenly advise McDaniel at the guilty plea hearing that he had the right to
appeal his sentence. McDaniel’s counsel at sentencing was the same counsel
who advised him during plea negotiations, who signed the plea agreement, and
who represented him at the guilty plea hearing. The trial court’s mistaken
advisement at the end of the sentencing hearing had no effect on the prior valid
waiver of McDaniel’s right to appeal his sentence. We also observe that the
trial court sentenced McDaniel within the terms of the plea agreement.
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Therefore, we conclude that McDaniel waived the right to appellate review of
his sentence, and we dismiss his appeal.
[13] Dismissed.
Brown, J., and Pyle, J., concur.
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